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Human Rights, Scottish wrongs : Scots rights to Supreme Court hearings must be maintained against victorian, inflexible Scots legal system

Alex_SalmondSupreme Court battle : Alex Salmond’s understanding of Scots Law & Scots human rights appears flawed. In a week where the vast majority of headlines concerning the Scottish legal system have been taken up by the continuing arguments over the Supreme Court’s ruling in the Nat Fraser case, pitching the misunderstandings of First Minister Alex Salmond & threats from Justice Secretary Kenny MacAskill against the need to maintain the human rights compliance of Scots law with European Convention on Human Rights (ECHR), it may be worth reflecting on the simple fact that in this case, the Scottish Government are very very wrong and very much at odds with the protection of human rights of individual Scots, whether the case be criminal law, or civil.

MacAskill tight lippedScotland’s Justice Secretary Kenny MacAskill said Supreme Court judges knew Scots Law only through visiting the Edinburgh Festival. The Herald newspaper reported on Tuesday of this week that Mr MacAskill, who clearly disagrees with the Supreme Court’s ruling in the Fraser case, had accused the Supreme Court judges (two of whom are Scottish) of being part of a ”court in London that is made up of a majority of judges who do not know Scots Law, who may have visited here for the Edinburgh Festival”. Mr MacAskill is further quoted in the article : “We just want to be treated the same as other legal systems – we’re not, because we’re undermined routinely by a court that sits in another country and is presided over by a majority of judges who have no knowledge of Scots law, never mind Scotland.”

Mr MacAskill also said the Scottish legal system should have direct access to the European Court in Strasbourg rather than the route of the London Supreme court, however, as cases can take years to reach the European Court, and Legal Aid funding from the Scottish Legal Aid Board is not always obtainable if the applicant’s face doesn’t fit, forcing Scots to wait four or more years for a fair hearing at Strasbourg rather than a trip to the Supreme Court is rather impracticable, not to mention breaching the rights of Scots to fair hearing in European law within a reasonable time.

On Wednesday of this week, the Herald newspaper reported the decision of the Scottish Government’s Cabinet to set up an expert group to examine Scotland’s relationship with the UK Supreme Court, quoting First Minister Alex Salmond as saying : “It is that desire to ensure Scotland is allowed to make its own decisions that fuels this Government’s desire for reform of the current position of the UK Supreme Court in Scottish criminal cases.”

He said it was “most certainly not”, as had been suggested by Supreme Court judge Lord Hope, “a misunderstanding of the law and the facts on the part of the Scottish Government”, adding “Our concerns are shared by senior members of the Scottish judiciary and respected legal figures, including Lord Fraser, the former Lord Advocate.” Mr Salmond is further quoted : “This is a practical and moral issue which concerns the rights of victims and their families, whose search for justice is delayed, and leads to cases being decided by a court where the majority of judges are not expert in Scots Law.” yet there are many more respected legal figures who dispute the First Minister’s version of events and view that Scots seeking justice should be forced on the long road to Europe rather than the shorter road to London.

The same day, Wednesday, Scotland’s Justice Secretary Kenny MacAskill threatened to cut funding to the Supreme Court, reported again in the Herald newspaper. The Herald article quotes Mr MacAskill as saying : “When I go to the Law Society I say that I will not routinely fund ambulance-chasing lawyers. It should be said that I am not going to pay for ambulance-chasing courts. As a Government we have to pay for the Supreme Court of the UK and I think they should recognise that we’ll pay for our fair share of what goes there.” Mr MacAskill is further quoted : “But I am not paying money that would come out of the police budget, or prison budget or community payback budget because they are routinely taking cases that we as a country do not think should be going there. He who pays the piper, as they say, calls the tune.”

Surely Mr MacAskill’s threat of withdrawing funding from the Supreme Court is a product of desperation in an argument where clearly, with the failure of Scottish judges to understand ECHR & comply with it in rulings in Scotland, Scots should be even more actively encouraged to seek rulings in London, rather than as the Lord Justice Clerk Lord Gill said himself, Scotland’s “Victorian” justice system.

However, in a twist to Mr MacAskill’s position on the funding question, with the Justice Secretary clearly feeling he can withdraw funding for Scottish cases to the Supreme Court, a move many could say is intended to frustrate an individual’s access to justice, Scottish judges themselves have taken an opposite approach and appeared before Holyrood, arguing they should have the power to ensure funding from the Government if justice requires it.

Lord Hamilton judicialScotland’s Lord President, Lord Hamilton argued Courts should have power to compel funding for justice. Indeed, the current Lord President, Lord Hamilton appeared before the Scottish Parliament’s Justice Committee, telling msps judicial independence should be maintained and also saying the justice system should have the power to ensure funding is made available for it. Lord Hamilton said : “In difficult financial times, it could be important for the courts to be able to say to the other organs of government that, to maintain a proper judicial system in a democratic society, they require funding of a certain minimum level to discharge that responsibility. It is in that provision that you have the responsibility of providing that for us.” Video footage of Lord Hamilton speaking on the question of funding for justice is available here : Lord President Lord Hamilton says the courts should have power to compel funding from Government for justice system to work properly

Today, Friday, the Herald newspaper reports the First Minister as having been forced to defend ‘Little Scotlander’ Justice Secretary Kenny MacAskill over his comments against the Supreme Court and accusations against its judges. Mr Salmond, replying to questions in the Scottish Parliament said : “I fully endorse the Justice Secretary in all aspects of his excellent work.”

Clearly, the human rights of Scots are caught up in a game of political football by Supreme Court hating politicians, who are concerned a court which is generally outside their influence is showing up the Scottish justice system to be the archaic, Victorian and prejudiced model we all know it to be, words spoken by some of its own judges and officials on the ground, rather than those living in ivory towers of St Andrews House.

It should also be noted that while the Scottish Government are content to huff & puff, playing to an agenda which seeks to deprive Scots of human rights rulings within a reasonable time, not one single press release or ministerial statement has appeared on the Scottish Government’s own website this week over the Supreme Court debacle, not even a hint of the Justice Secretary’s threat to pull funding for the Supreme Court.

Readers may wish to view the following two interviews and judge for yourselves, who is acting in the public interest to protect Scots rights of access to justice & access to Human Rights :

Making politics : First Minister Alex Salmond claimed the ruling was the replacement of Scottish Law with Lord Hope’s law, even though Lord Hope is a former Lord President of the Court of Session in Scotland.

Making sense : Professor & solicitor Tony Kelly : “If the Supreme court constantly has to overturn the decisions of the Scottish Court there is a problem..”

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Scottish Government’s response to Civil Courts Review : Class Actions, more cases to Sheriff Courts, & faster, easier access to justice ‘over years’

Lord GillLord Gill’s Civil Courts Review receives Government backing. PROPOSALS for civil justice reform including the implementation of Class Actions, increasing the financial limits of cases in Sheriff Courts, creation of a new judicial tier & ‘better case handling’ have finally been announced today by the Scottish Government in response to the Lord Justice Clerk, Lord Gill’s highly critical 2009 report, the Civil Courts Review, which branded Scotland’s civil justice system as being “a Victorian model that had survived by means of periodic piecemeal reforms”, to the point of being such a failure at providing Scots with access to justice, “its procedures as frustrating and obstructive rather than facilitating the achievement of justice.”.

The announcement today by the Scottish Government, follows yesterday’s Law Society of Scotland’s response to Lord Gill’s Civil Courts Review, this time giving the current SNP administration’s political version of which of the proposals made by Lord Gill will actually be implemented. Unsurprisingly, it will take the Scottish Government several years to bring in the proposed reforms, meaning the current Victorian state of Scotland’s justice system will continue for as long as possible a little longer.

Kenny MacAskillJustice Secretary Kenny MacAskill announced Scottish Government’s response to Civil Courts Review. The Justice Secretary Kenny MacAskilll, making a surprise appearance to announce the Government’s response (surprising in that it has been so far left to Communities Safety Minister Fergus Ewing to lead the Holyrood debates on the Civil Courts Review proposals), said : “I thank Lord Gill and the members of his project board, Lord McEwan, Sheriff Principal James Taylor and Sheriff Mhairi Stephen, together with all the members of the broader policy group and others who also participated in the review, either as individuals or as representatives of organisations. Their collective contributions have provided a landmark in the development of Scottish civil justice.”

Mr MacAskill continued : “I am pleased to announce the Scottish Government’s commitment to taking forward the majority of Lord Gill’s recommendations, which have been broadly welcomed by Scotland’s legal community and by the Parliament. I am keen to maintain a broad consensus as we set about implementing the required changes. This will enable progress to be sustained across different sessions of the Parliament, as will be necessary with the timescales involved in fundamental change.”

Mr MacAskill’s foreword in the response goes onto state the changes Lord Gill recommends will need to take account of the current financial situation, although the Justice Secretary claimed radical steps must be taken to address waste & inefficiencies. Mr MacAskill wrote : “In taking forward the reforms, we will need to take full account of the pressure on public finances. This will significantly constrain investment in system improvements or transitional costs.” But if anything, this pressure makes reform more, not less necessary. We cannot accept that the waste and inefficiency identified by Lord Gill should be a permanent feature of the civil justice system, and must be prepared to take radical steps where necessary to address them.”

Scottish GovernmentScottish Government to ‘make justice work’ for Scotland. Mr MacAskill also said the reforms proposed by Lord Gill need to be seen in the context of the wider justice system – including criminal justice, Tribunals and other means of securing access to justice and to this end, the Minister stated the Scottish Government is to establish a major change programme, entitled “Making Justice Work”, which will co ordinate and oversee reforms across the system. Further recommendations on access to justice are due to be made by the Civil Justice Advisory Group, which has been established under the chairmanship of Lord Coulsfield and recently carried out a consultation I reported on, HERE.

Mr MacAskill concluded Lord Gill was right in his diagnosis and right in his prescription, and said it is now for the Scottish Government, the judiciary and the Scottish Court Service to ensure that this landmark report leads to the fair, just, accessible and efficient civil justice system that Scotland deserves. Lets hope these are not ‘famous last words’ on Scotland’s Victorian justice system.

Contained in the Scottish Government’s proposals are the creation of a third judicial tier, that of a new District Judge with restricted rights of onward appeal across the tiers and the handling of much court business conducted at a lower level than at present.

Court of Session Parliament HouseCourt of Session to lose business to Sheriff Courts. The Scottish Government agrees in principle that the sheriff courts could and should handle most of Scotland‘s lower value civil court business, and that the Court of Session should not handle business of low value unless this is justified by other factors, such as a wider legal significance. The Scottish Government went on to state it is therefore minded to accept the proposed limit of £150,000 for the new privative jurisdiction of the sheriff court, subject to further modelling work and that a specialised personal injury court be established as part of Edinburgh Sheriff Court.

The Scottish Government supports the recommended approach to better case handling, with case docketing, more reliance on active judicial case management and the further development of case flow management procedures in other types of action. The Scottish Government also agrees that new court rules should be developed with plainer language, providing appropriate consistency of practice across different courts.

Class ActionsClass Actions finally to be allowed in Scotland – Scots only had to wait nearly 30 years. Class Actions are also to be allowed in Scotland’s courts, the Scottish Government saying it supports in principle the recommendations that procedures for judicial review should be reformed and clarified, and that provision should be made for multi-party actions (Class Actions). I reported on the Scottish Government’s consideration of the Class Action issue, during August 2009, HERE. There will also be a review of costs & funding of litigation and the formation of a Civil Justice Council to take forward the implementation of the report and keep the civil justice system under review.

McKenzie Friends for ScotlandMcKenzie Friends proposal only made it in to present day court use due to Holyrood petition, court case & media scrutiny. Various issues already being progressed by the Scottish Government were mentioned, along with McKenzie Friends which were recommended by Lord Gill to be implemented in Scottish Courts. However most observers to the justice system see the McKenzie Friend issue as being pushed through on a more speedy note only due to the developments in one of Scotland’s longest running Court of Session civil cases last year (M.Wilson v North Lanarkshire Council & Others (A1628/01) along with the enormous push McKenzie Friends received via a public petition at the Scottish Parliament – Petition 1247 (McKenzie Friends for Scotland), none of which is actually referred to in the Scottish Government’s response issued today.

The Scottish Government’s full response to Lord Gill’s Civil Courts Review can be viewed online here : Scottish Government Response to the Report and Recommendations of the Scottish Civil Courts Review or can be downloaded directly, here : Scottish Government Civil Courts Review response (pdf)

Readers can download the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links :

Readers may also wish to gauge how Holyrood and the Scottish Government are treating the Civil Courts Review, from a report covering the last Holyrood debate on the subject, along with video footage, here : Holyrood debate reveals civil justice reforms & McKenzie Friends may be a long way off as Scottish Ministers stumble over Lord Gill review proposals

My coverage of the Civil Courts Review from its publication to the present, can be found here : Civil Courts Review – The story so far.

 

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Lord Gill’s Civil Justice reforms ‘cherry picked’ in Law Society report as lawyers rush to protect ‘Victorian’ business model over Scots access to justice

Law Society of ScotlandLaw Society finally submit their proposals to cherry-pick Lord Gill’s Civil Justice reform recommendations. AFTER well over a year since the Lord Justice Clerk, Lord Gill published his damming 2009 Civil Courts Review investigation of what he himself branded Scotland’s “Victorian” justice system, the Law Society of Scotland have today finally submitted their own recommendations, effectively cherry picking ‘some’ of the reforms recommended by Lord Gill which the Law Society feel are broadly in favour of the legal profession’s vested interests, while also recommending the Scottish Government form a Civil Justice Council for Scotland, which unsurprisingly will be driven by the Law Society itself.

Lord GillLord Gill. The Lord Justice Clerk, Lord Gill spoke at last year’s Law Society of Scotland’s 60th Anniversary Conference, castigating Scotland’s civil justice system as “a Victorian model that had survived by means of periodic piecemeal reforms”. Lord Gill went onto say Scottish civil justice fails on many counts, have notorious delays and high costs to litigants, deter claims which may be well-founded and branded its procedures as frustrating and obstructive rather than facilitating the achievement of justice. I recently reported on the one year plus, anniversary of Lord Gill’s Civil Courts Review, and the lack of any progress on the Lord Justice Clerk’s recommendations to reform Scotland’s ‘Victorian’ civil justice system, here : Civil Courts Review one year on : Scotland’s out-of-reach justice system remains Victorian, untrustworthy and still controlled by vested interests

McKenzie Friends for ScotlandLaw Society now ‘support’ the introduction of McKenzie Friends, as long as they are not paid and don’t compete with solicitors. Among the many recommendations of Lord Gill which the Law Society makes supportive comment, the question of the introduction of McKenzie Friends, which the Law Society & Faculty of Advocates both initially opposed during hearings at the Scottish Parliament into Petition 1247 (McKenzie Friends for Scotland), has now attracted a ‘qualified support’ from the Law Society.

The Law Society’s submission to the Scottish Government on the issue of McKenzie Friends states : “The Committee has had the opportunity of further debating the issues and is supportive of the introduction of McKenzie Friends. The Committee agrees that there should be an automatic right to use a McKenzie Friend. However, it should be within the court’s discretion to insist on a withdrawal of a McKenzie Friend if it determines that the position is being abused.”

However, and not unexpectedly, the Law Society has now revealed its official opposition to the prospect of McKenzie Friends (lay assistants) being paid for their services in Scottish courts – an opposition borne out of the Law Society’s fear of its member solicitors losing business to vastly cheaper McKenzie Friends. While Scottish McKenzie Friends are prohibited from being paid for their work, existing case law in England & Wales supports McKenzie Friends receiving some form of remuneration.

The Law Society stated, with regard to their opposition to McKenzie Friends being paid a fee : ”The Committee would be concerned if Mackenzie Friends were remunerated for their assistance. The Court of Session Rules Council has drafted a Rule on the basis that Mackenzie Friends will not be paid, which the Committee supports.”

MF spyglassLaw Society report also recommended spying on McKenzie Friends with an online register. In a sinister twist with overtones of unwarranted spying by the courts & legal profession on individuals appearing in court as McKenzie Friends, the Law Society submission to the Scottish Government also recommended keeping a register of people who appeared in Scottish courts as McKenzie Friends, enabling those individuals ‘to be monitored’. The Law Society’s justification for spying on McKenzie Friends states : “There is also a concern if Mackenzie friends provide assistance to a large number of unconnected party litigants. This should perhaps be monitored. One option would be for an on-line register of all persons who appear as McKenzie Friends.”

Consumer Focus ScotlandConsumer Focus Scotland & Lord Gill support wider public legal education, as do now the Law Society, to a certain extent. Regarding Lord Gill’s recommendation of ‘wider public legal education’, an issue championed for some time by Consumer Focus Scotland, and the subject of a recent petition (Petition 1354) to the Scottish Parliament, the Law Society’s submission states : “The Committee welcomes public legal education. The Committee believes that public legal education helps overcome hurdles which may impede access to the legal system and accordingly access to justice.”

“The Committee welcomes the current in-court advice project and believes that the project initially started in Edinburgh Sheriff Court should be extended throughout all Sheriffdoms in Scotland. At present, unrepresented litigants, through the in-court advice schemes, can receive advice before their case calls in court. These initiatives clearly improve access to justice but require to work in conjunction with a properly funded legal advice scheme giving access to advice by solicitors. Although there are other in-court advisory schemes, the one in Edinburgh is free and should be the model for other such advisers.”

Small ClaimsIt took 19 years to raise Scotland’s small claims limit from £750 to £3,000, now the Law Society wants to limit the value of Sheriff Court cases once again. Another of the Civil Courts Review recommendations, namely that of the increase in values of claims the Sheriff Court can hear, from its current level of £5,000 to £150,000, received a more frosty response from the Law Society, who, unsurprisingly, with its members potentially losing business & Court of Session appearance fees, claimed : “The Committee is very keen to retain the Court of Session as a court of first instance for suitable cases. The Court of Session is a centre of excellence, which is well respected for both the high level of judicial expertise and the guidance which it provides to the lower courts, both as a court of first instance and as an appellate court.”

The Law Society preferred a smaller increase in Sheriff Court case values, stating further in its submission : “Taking account of these views and of those who deal with other types of litigation, including commercial actions, the Committee consider that an appropriate threshold for Civil cases in the Court of Session would be not less than £20,000 and not more than £50, 000. i.e. The privative jurisdiction of the Sheriff Court should be increased from the current £5,000 to at least £20,000 but should not be more than £50,000.”

With further regard to personal injury claims & the value of cases, and Lord Gill’s recommendation that a specialist personal injury court should be created, based in Edinburgh Sheriff Court but with jurisdiction throughout Scotland, giving pursuers a choice between local access to justice or the advantages of a Sheriff Court with all Scotland jurisdiction, the Law Society categorically opposed the idea, stating : “The Committee is not persuaded there is a rationale for the introduction of a national Personal Injury Sheriff Court in Edinburgh or any other single location. The Committee still favours specialisation for Sheriffs in each Sheriffdom. Much depends on the privative level of the Sheriff Court. If appropriate specialists are employed and the threshold were to be set between £20,000 and £50,000 there is no need for a national court.”

Class ActionsScots have waited 27 years for Class Actions, will have to wait some more. On the issue of Class Actions or multi-party actions, also recommended for introduction by Lord Gill, the Law Society disagreed with some of Lord Gill’s views, doubtless in an effort to prolong the introduction of class actions to Scotland’s civil justice system. The Law Society’s submission to the Scottish Government on the question of the introduction of class actions to Scotland states : “The Committee do not agree that judicial discretion should be exercised to determine whether a multi-party litigation is an opt-in or opt-out (ie included unless they tell the court that they do not wish to be included) for claimants. The Committee consider that depriving an individual of the right to litigate requires primary legislation. This is an important question of access to justice.”

The Law Society also disagreed with Lord Gill’s recommendation that Petitions for judicial review should be brought promptly and, in any event, within a period of three months. The Law Society instead claimed : “a three month time scale is too tight to exhaust all the administrative options. Six months would be a more manageable and appropriate period, particularly if the court had further discretion in the circumstances where it was just and equitable to allow a petition outwith the period.” The Law Society went onto agree with recommendations for tests on the success of Judicial Reviews, agreeing that a ‘sift’ panel should be introduced to remove Judicial Reviews which have no chance of success, with those who fail the first test being able to appeal to a second ‘sift’ panel.

On the question of ‘mediation’ in disputes, the Law Society stated that mediation and other forms of extra- judicial dispute resolution should be voluntary, and agreed that a free mediation service should be provided for claims under the new simplified procedure. The Law Society’s submission contended “such a [mediation] service would only be successful if it is funded and publicised by the Scottish Court Service and is effectively free to the users.”

The Law Society issued a Press Release, ever-imaginatively-titled Society urges Scottish Government to implement civil justice reforms, announcing its orders to civil servants & Scottish Ministers submission to the Scottish Government. Kim Leslie, convener of the Society’s Civil Justice Committee, said: “Lord Gill’s report identifies a number of structural and other weaknesses currently affecting Scotland’s civil courts, and makes recommendations designed to make radical improvements which, if implemented, will dramatically alter the delivery of civil justice in Scotland. We made submissions to the initial consultation as part of Lord Gill’s review and welcomed publication of the report in September 2009. We are now keen to see implementation of some of the key recommendations to improve civil justice in Scotland.”

“The scope of the review was huge, and the Society’s Civil Justice Committee has not commented on every recommendation in the review, however one of our own key recommendations would be to separate civil and criminal business within the Sheriff Court because many of the current problems arise from the huge amount of judicial time which is spent dealing with summary cases.”

“We also support the view that there should be specialisation within the judiciary, in particular in administrative, environmental and planning law as well as family, commercial and personal injury cases. Such specialisation could be introduced without the need for primary legislation and at no great cost to the public purse – there has already been a successful pilot in Glasgow Sheriff Court of such a system and think this would be beneficial if rolled out across Scotland. The committee is also keen that there should be the option of using a commercial court in each Sheriffdom.”

The Law Society’s Press Release went onto say the Society’s Civil Justice Committee has also backed increasing the threshold for civil cases in the Court of Session, Scotland’s highest civil court. Currently the threshold for cases to be heard in a Sheriff Court is £5,000 and the committee believes this should be raised to at least between £20,000 and £50,000 to allow business to be directed to the appropriate level competent to deal with it.

Ms Leslie said: “Any increase in the threshold for cases to go before the Sheriff Court must coincide with the introduction of specialist sheriffs. We would also endorse the creation of a third tier, dealing with appropriate cases to alleviate pressure on the civil justice system.

“We are in broad agreement with many of the recommendations made in the Civil Justice Review, although we have also taken the opportunity to outline reservations on some of Lord Gill’s recommendations, such as a national Sheriff Appeal Court for civil appeals. We would now urge the Scottish Government to implement some of the recommended reforms including the establishment of a Civil Justice Council for Scotland, which would bring in the cost and funding of litigation as part of its remit.”

“We are keen to see the introduction of workable improvements to Scotland’s civil justice system for all those who use it and work within it and look forward to working with government in bringing forward reform.”

The full Law Society of Scotland Civil Justice Committee report can be read at: Law Society of Scotland’s Civil Justice response or readers can directly download it as a pdf, here : Law Society Civil Justice response

Protecting law firms business & extortionate fees, far & above over the rights of ordinary Scots access to justice doesn’t come any more obvious than today’s Law Society’s response to the recommendations contained in Lord Gill’s Civil Courts Review.

Readers can download the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links :

Readers may also wish to gauge how Holyrood and the Scottish Government are treating the Civil Courts Review, from a report covering the last Holyrood debate on the subject, along with video footage, here : Holyrood debate reveals civil justice reforms & McKenzie Friends may be a long way off as Scottish Ministers stumble over Lord Gill review proposals

My coverage of the Civil Courts Review from its publication to the present, can be found here : Civil Courts Review – The story so far.

 

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Access to justice for all ? Scots criminal law changed by UK Supreme Court in a day, ‘Victorian’ civil justice reform proposals ‘growing older by the year’

Debating chamberScottish Parliament will pass swift amendments to Scots criminal law today but what of civil justice reforms. MOTIVATION to change, reform or ‘tamper with’ the Scottish justice system comes in all shapes & sizes, although it appears no motivation for change in recent times has come more forceful than yesterday’s UK Supreme Court ruling on Cadder v HMA, which has today brought a hurried, ill tempered Scottish Parliament debate on significant changes to Scots criminal law, focussing on mostly the rights of accused to have a solicitor present while being questioned by Police.

Kenny MacAskillJustice Secretary Kenny MacAskill called Scotland’s Justice system proud & distinctive, admired by others. A rather reluctant-to-change (to put it mildly) Scottish Justice Secretary, Kenny MacAskill said yesterday in the Scottish Government’s media release to the Supreme Court’s decision, the Scottish justice system was, or is “… a proud, distinctive, justice system, developed over centuries, and predicated on fairness with many rigorous protections for accused persons. It is rightly admired by other jurisdictions.” however, many of the actual users of the Scots justice system, whether relating to civil law or even criminal law, do not appear to share Mr MacAskill’s distorted vision of a justice system which appears more to hold Scots hostage to the past, and hostage to injustice, rather than being a beacon for fairness for all Scots it very much should be.

Fortunately there are ample critics of our ‘proud, distinctive justice system’, even from within its own ranks, and in a week which began with European Civil Justice Day, a day which the Scots justice system apparently is contented to celebrate as being at least 100 years behind the civil justice systems of most of Europe, and many other jurisdictions, it is a fitting time to remind ourselves of the work put in by the Civil Courts Review team & Lord Gill on the Civil Courts Review, while looking around at what has changed or been reformed in Scots civil law. The Scottish Parliament debate on the Civil Courts Review, reflected a rather less than break neck speed attitude towards reforming civil law, which I reported on in an earlier article HERE

Lord GillThe Lord Justice Clerk, Lord Brian Gill spoke to the Law Society of Scotland’s 60th Anniversary Conference held on 8th May 2009, giving his verdict on his two year Civil Courts Review, branding Scotland’s civil justice system as “a Victorian model that had survived by means of periodic piecemeal reforms”. Lord Gill went onto say Scottish civil justice fails on many counts, has notorious delays and high costs to litigants, deterring claims which may be well-founded and branded its procedures as frustrating and obstructive rather than facilitating the achievement of justice.

Lord Gill’s speech to the Law Society 60th anniversary conference, follows :

The Lord Justice Clerk, Lord Gill : I am honoured to be invited to talk about the Scottish Civil Courts Review to a gathering of lawyers who will be most directly affected by the outcome. We began our work in April 2007 and will soon submit our Report to the Cabinet Secretary for Justice. I have been saying for years that such a review was long overdue and that it is important that the outcome should be change that is significant and lasting. This is not the time for tinkering with the system. We have had that for a century or more. But it is not the time to cause upheaval by introducing changes that may require to be amended within a short time. This review is an opportunity to make a lasting difference.

We have carried out a wide-ranging examination of the structure of the courts, their jurisdictions and their procedures. We have amassed a body of information never before collected in one source. We have received evidence from respondents to the consultation paper, from statistical data compiled by SCS and from comparative studies of other jurisdictions. We have also held numerous meetings with interested bodies and individuals.

I am grateful to all those who have helped us in our study. Over 200 individuals and organisations gave us their views and ideas. We may not know what the answers are but we certainly know what the problems are. Our work has also been informed by what is done in other jurisdictions. The difficulties which we have identified are often reflected in work being done elsewhere. That does not mean that there are ready made solutions to be found elsewhere. Systems are different in other jurisdictions, with practical and cultural implications for every change proposed. Decisions taken reflect a wide range of influences which will be different in every country. It has nonetheless been useful to learn what we can from others’ work.

The responses to the consultation paper were clear on the areas where reform is needed. It was reassuring that the issues that we had provisionally identified seemed to be on the right lines. We have been surprised by some of the points being made and experiences related to us. We have heard from legal practitioners at an individual and a representative level; members of the judiciary, court users; advisory bodies; and many more. There are relatively few matters where a possible solution would be universally acclaimed; but there are a few areas where there is strong consensus. So while we will not please some people, I hope that we will not antagonise everybody.

The civil justice system in Scotland is a Victorian model that had survived by means of periodic piecemeal reforms. But in substance its structure and procedures are those of a century and a half ago. It is failing the litigant and it is failing society. It is essential that we should have a system that has disputes resolved at a judicial level that is appropriate to their degree of importance and that disputes should be dealt with expeditiously and efficiently and without unnecessary or unreasonable cost. That means that the judicial structure should be based on a proper hierarchy of courts and that the procedures should be appropriate to the nature and the importance of the case, in terms of time and cost.

Scottish civil justice fails on all of these counts. Its delays are notorious. It costs deter litigants whose claims may be well-founded. Its procedures cause frustration and obstruct rather than facilitate the achievement of justice. Unless there is major reform and soon, individual litigants will be prevented from securing their rights, commercial litigants will continue to look elsewhere for a forum for their claims, public confidence in the judicial system will be further eroded, Scotland’s economic development will be hindered, and Scots law will atrophy as an independent legal system. The conclusions of our Review are as stark as that.

You may think that the profession has enough to contend with without also having a civil courts review as well. I sympathise with that view. In over 40 years in the profession, I have never experienced times like these. But there is never an ideal time for change. So I urge you to be receptive to the conclusions of a lawyer-led programme for reform, if only for fear of something worse.

If you were to sit down and devise a civil justice system for the 21st century, it would be nothing like what we have. But the Review is not a clean-sheet exercise. We have to practise the art of the possible. What that points to is:

a) in the immediate future, swift and properly-resourced reforms that will check the system’s present drift; and

b) in the longer term, the establishment of a mechanism by which the system will constantly adapt and renew itself rather than lurch into piecemeal reforms every two or three decades.

This is a once-in-a-generation opportunity. I think that the Scottish Ministers recognise that. What we will offer will be an integrated set of proposals that will give the best prospect of change if adopted as a package. It would be regrettable if only the easy gains were to be cherry-picked to give the semblance rather than the reality of reform. It would be a breach of protocol, and a discourtesy to the Cabinet Secretary, if I were to discuss the conclusions of our Review. But I think that it may help to set the context in which our report will be drafted if I identify the main topics and let you know the way the wind was blowing in our consultation exercise.

The consultation process and the research undertaken by the Review Team suggest that the issues fall into three broad categories: access to justice, delay, and inefficiency.

ACCESS TO JUSTICE

Fundamentally this is about the cost of accessing the civil courts – both real and perceived. Looking at the position in other countries, I think that we are fortunate in Scotland to have a system of legal aid which is not capped. The system itself does not fall within the remit of the Review; but we welcome the recent increase to the upper disposable income threshold introduced by the Scottish Government. There remain concerns however about whether the civil court system in respect of costs generally supports access to justice in all circumstances.

For example, although speculative fee arrangements of various kinds are now common in reparation actions, there are many other types of action that are unlikely to be funded on this basis; for example, family actions. In complex reparation actions, such as claims in relation to medical negligence, it may be difficult for claimants to find a solicitor willing to act on a speculative basis and after the event insurance premiums may be prohibitively expensive.

Many respondents drew attention to the unreasonable cost of litigation and to the fact that, where speculative fee arrangements were not available, many potential litigants may not be able to afford to assert their rights. There is also the deterrent effect of the risk of an adverse finding in expenses if the action fails.

The shortfall between party and party expenses and agent and client expenses was also referred to, in particular, in relation to commercial litigation in which it was submitted that recovery rates are much lower than in England and Wales and that this operates as a disincentive to litigating in Scotland. In England and Wales, the average recovery rate is also the subject of complaint. Concerns were also expressed about the system of taxing judicial accounts of expenses.

DELAY

We have not been surprised to find that there is a strong feeling that the pressure of criminal business, in terms of volume and the priority assigned to it, is having a detrimental impact on civil business in both the Court of Session and the sheriff court. Lengthy waiting periods for proofs and the deferment or interruption of cases to make way for criminal business all cause concern and add to expense.

There have been other causes of delays. For example, respondents complained of delays in issuing judgments in the Court of Session. Our attention has been drawn to numerous cases in which the delay was excessive. We were surprised by the depth of feeling on this matter. This is important for everyone. For those litigants in the commercial field who have a choice of where to litigate, the prospect of delay can outweigh the competitive advantage which Scottish solicitors are able to offer. A number of solicitors practising in the commercial field have said that they had lost business as a result of the length of time it takes for cases to be resolved, particularly if there is an appeal. That is not good for Scotland.

INEFFICIENCY

In the context of remedying inefficiency the areas that require to be considered urgently are (a) the appropriate use of judicial resources, including part time resources; (b) specialisation; (c) case management; and (4) IT.

In response to questions regarding the allocation of business between the Court of Session and the sheriff court, many respondents favoured the status quo; but many others suggested that there is too much low value litigation in the Court of Session, and the sheriff court too, and that this has an adverse effect on the expeditious conduct of other business. It was suggested that it was not a cost effective or appropriate use of judicial resources. Many respondents were in favour of the creation of a new level of judicial officer to deal with lower value cases and were generally of the view that this should be a professional post.

We also received representations on the use made of temporary or part time resources in the Court of Session and the sheriff court. Part time appointments were conceived to provide flexibility in dealing with emergencies and unexpected peaks of work. The reality is that they form a permanent and integral part of the court programme in both the Court of Session and the sheriff court. The programme could not be delivered without them. Respondents have complained that part time justice may lead to inconsistent decision making and poor case management. They have also expressed concern about the appropriateness of part time judges and sheriffs sitting in courts in which they commonly practise. This may not be good for the appearance of things.

There was considerable support from practitioners and court users for a greater degree of specialisation, particularly at sheriff court level, and for a more proactive system of case management. The way in which court programmes are structured at present and the demands of summary criminal business make it difficult to ring-fence civil business, or to provide a degree of specialisation or continuity, in all but the largest courts. Family practitioners, in particular, were concerned about a lack of continuity and consistency in decision making in cases involving children. Those involved in referrals from children’s hearings and adoptions were concerned about the problems of allocating hearings of sufficient length for complex cases. As a result hearings took place for a day or two at a time over extended periods, often of several months or more. This cannot be right in an area of law in which the child’s best interests are a paramount consideration.

The proposal, canvassed in the consultation paper, to establish regional civil justice centres where specialist sheriffs would be based did not attract much support. It was felt that this would be expensive to set up. There was a strong view that family cases should be dealt with locally in view of the need for parties to attend child welfare hearings and the fact that urgent interim orders are often sought in such cases. Concerns were expressed about access to justice if parties were required to incur the cost of travel to a regional centre rather than have their case heard in the local sheriff court.

Housing was another area where it was thought that a greater degree of specialisation was desirable. A number of respondents favoured the establishment of a specialist housing tribunal or an expansion of the jurisdiction and remit of the Private Rented Housing Panel. Others, including those representing the interests of tenants, thought that housing cases raise important and complex issues of law and should remain within the sheriff court. There was, however, considerable support for improving the procedure in housing cases, placing greater emphasis on alternative dispute resolution, and exploring alternative methods of supervising payment arrangements.

On the issue of mediation and ADR, respondents who had experience of court proceedings as litigants, and organisations representing the interests of litigants, tended to have a more positive attitude towards mediation and other forms of dispute resolution than respondents from the legal profession. This suggests that litigation is not currently providing all that people want in terms of dispute resolution processes and that there is a desire for the civil justice system to provide a broader range of options.

There was a fair degree of consensus that mediation was not appropriate in cases where there was a need for a judicial precedent or a declaration of legal rights, but there was no evidence of concern that greater use of mediation might lead to “loss of law” or harm the development of Scots law. On the contrary, some respondents suggested that one of the benefits of greater use of mediation would be that court resources would be freed up to deal more expeditiously with cases that genuinely need judicial determination.

There was scarcely any support for the idea that mediation should be a compulsory first step, as a condition precedent to the raising of a litigation. There has been considerable support for the proactive case management model adopted in the commercial court in the Court of Session and in the commercial court, the personal injury pilot and the family court in Glasgow sheriff court. There was general agreement that the impact of the reforms to the ordinary cause rules in the sheriff court had lessened with time and that options hearings had become a formality where the principal agents did not appear personally. This leads to drift and multiple continuations. There was support in principle for a more actively case managed system, although views differed as to how this could be achieved if there was no continuity or “case ownership” by the judiciary.

Complaints were also made about the use, for tactical reasons, of over elaborate and technical pleadings; and late disclosure of documents or evidence. There was particular concern that procedures are not sufficiently geared towards efficient use of court time.

The majority of respondents supported the proposition that greater use should be made of IT. In particular, there was considerable support for electronic filing and transmission of documents to the court; for the creation of electronic processes or case files; for the use of telephone or videoconferencing facilities for procedural and, where appropriate, substantive hearings; for the ability to file and process certain types of claim on-line; for the digital recording of evidence; and for advice and self help guides to be available on-line to assist those without legal representation. Scotland is far behind many other jurisdictions in its use of IT. There are obvious resource problems, but even if IT is a medium to long term project, there are quick and easy gains to be made in the introduction of more efficient, streamlined case management systems.

Also within the concept of inefficiency is the question of the management of party litigants in the civil courts. It was clear from our consultation that party litigants create significant difficulties, for the courts and for their opponents, and can result in a significant waste of judicial time. It is a party litigant’s right to represent himself but we have to acknowledge that this should not be at the expense of other court users. We must therefore look at how best to support and manage party litigants to minimise disruption. That raises the related problem of abuse of process.

CONCLUSION

We intend that our proposals will set out a pragmatic and practical programme of reform. They will not please everyone; but please approach them with an open mind. Please also recognise that they are the product of two years of dedicated work by the Review Team, whose efforts are beyond praise. I am grateful for the opportunity to thank the Team publicly. The Review has been a considerable undertaking and I am proud to have had the privilege of leading it.

 

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McKenzie Friends ‘on the way’ to Scotland’s Sheriff Courts, application procedure to be ‘less formal’ than Court of Session

McKenzie Friends for ScotlandMcKenzie Friends will soon appear to assist party litigants in Scotland’s Sheriff Courts. SHERIFF COURTS across Scotland are on the way to formalising the arrangements for unrepresented party litigants to obtain the services of a McKenzie Friend, the usually non-lawyer lay courtroom helpers which have provided invaluable assistance to thousands of party litigants in the English court system for the past forty years, after the Sheriff Court Rules Council let it be known their work on the issue is at draft stage, hopefully soon to be concluded.

A spokesman for the Sheriff Court Rules Council on being asked about the developments to bring McKenzie Friends to Scotland’s Sheriff Courts after I had reported earlier on the Sheriff Court Rules Council’s consideration of the issue, said yesterday : “I can confirm that the Sheriff Court Rules Council considered draft rules for the use of a McKenzie Friend in civil proceedings in the sheriff court at its meeting on 6 August.“

He continued : “The Council agreed with the recommendation of its working group that a different approach to that of the Court of Session was necessary namely that the procedure involved should be less formal with no certification as regards the suitability of the individual which the party litigant wishes to assist in the conduct of the proceedings being required. I should advise you also that the draft rules require some amendment so they are still under consideration by the Council.”

Hamilton & MacAskillLord Hamilton & Justice Secretary Kenny MacAskill were caught out by speed & widespread support of Holyrood McKenzie Friends Petition. The Sheriff Court Rules Council’s consideration of the McKenzie Friend question, follows the implementation of McKenzie Friends in Scotland’s Highest court, the Court of Session after Scotland’s Chief Judge, the Lord President, Lord Hamilton, and the Scottish Government were caught on the hop when a public petition (Petition 1247) was filed at the Scottish Parliament by Stewart MacKenzie, asking Holyrood’s Petitions Committee to address the 40 year exclusion of McKenzie Friends in Scotland’s courts. Video footage of the Scottish Parliament’s hearings on Petition 1247 can be viewed online at InjusticeTV.

Lord GillLord Gill proposed McKenzie Friends in Civil Courts review. Progress to finally bring lay assistants to Scotland’s civil courts was helped considerably by McKenzie Friends being recommended by Scotland’s Lord Justice Clerk, Lord Gill who had spent considerable time on the issue of lay representation as part of the two year Civil Courts Review. Lord Gill had also recommended a ‘super McKenzie Friend’ with a right of audience, enabling a lay assistant to address the court on behalf of party litigants, a proposal now part of the Legal Services (Scotland) Bill, which I recently reported here : McKenzie Friends from today in Court of Session, Lord Gill’s ‘super’ McKenzie Friend with rights of audience proposal goes to Holyrood

Lord WoolmanCourt of Session judge Lord Woolman granted Scotland’s first civil law McKenzie Friend in late 2009. Not long after Lord Gill’s report on civil law reforms was published, a decision in what appears to be Scotland’s longest running civil claims action, now in its f o u r t e e n t h year, M.Wilson v North Lanarkshire Council & Others (A1628/01), overtook events at Holyrood and introduced Scotland’s first civil law McKenzie Friend in the Court of Session, granted by Lord Woolman, making the decision to introduce McKenzie Friends to general use in the Court of Session and lower Sheriff Courts, a formality, albeit a decision taking the best part of a year to complete.

Law Society & faculty of advocatesLaw Society of Scotland & Faculty of Advocates initially objected to Holyrood Petition bringing McKenzie Friends to Scottish Courts. The exclusion of McKenzie Friends from Scottish Courts has been attributed by many seasoned law reform campaigners, several politicians and even some insiders within the legal profession to the lobbying power of the Law Society of Scotland, who, along with the Faculty of Advocates, initially opposed calls to introduce the internationally acclaimed lay courtroom helper to Scotland’s courts, over fears consumers would turn to McKenzie Friends to save themselves the notoriously unjustifiably huge solicitor’s fees which are typical of even the simplest court actions in Scotland, a well known obstacle to justice which has excluded many members of the public from gaining access to Scotland’s courts over the past four decades.

However, while the legal profession have traditionally viewed themselves as the providers of access to justice to Scots, the fact is the legal profession are simply a multi billion pound business, who for many years have themselves monopolised Scots access to the court system & access to legal services, in effect, selecting who among Scotland’s population had access to justice, while excluding those who the Law Society decided should not be allowed near a court. Many know this to be true, as do many of Scotland’s highest judges. There are thousands of examples a year to support this view, with a trail of people left out in the cold by the legal profession who as a whole have little regard for the rights of individuals unless there is a huge amount of money to be made from their predicament.

Placing the interests of what is nothing more than a business above the rights of Scots to enjoy unfettered access to justice, is wholly wrong, and for this reason, many consumer groups across the UK backed the introduction of McKenzie Friends to Scotland’s courts, to increase Scottish consumer’s access to justice.

A senior official from one of Scotland’s consumer organisations today welcomed the developments from the Sheriff Court Rules Council, expressing hope the Scottish Court Service would offer written guidance in all of Scotland’s Sheriff Courts to assist members of the public on the issue, allowing informed choices to be made on using McKenzie Friends in cases which may benefit consumers & the interests of justice considerably by the use of lay assistants in many common types of cases which currently fall victim to unscrupulous solicitors who unnecessarily complicate even the simplest of Sheriff Court cases to ensure larger fees for their little input.

However, a Scottish Parliament insider said he was slightly disappointed the Sheriff Court Rules Council had not been able to proceed the matter at a faster pace, as the Petitions Committee was due to hear Petition 1247 in September and had hoped to report the availability of McKenzie Friends in all of Scotland’s courts, bringing the Committee’s consideration of the issue to a successful conclusion.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

All written submissions for the McKenzie Friend petition at the Scottish Parliament can be read here : Written submissions for Petition 1247, McKenzie Friends for Scotland

 

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Consumers urged to give their views as Civil Justice Advisory Group launches consultation on key proposals of Lord Gill’s Civil Courts Review

Consumer Focus Scotland logoConsumer Focus Scotland launches consultation on Civil Justice reforms. CONSUMER FOCUS SCOTLAND’s Civil Justice Advisory Group, chaired by the Right Honourable Lord Coulsfield, have launched a consultation to debate some of the key proposals of Lord Gill’s Scottish Civil Courts Review report and determine the best way forward for implementing the many recommendations made by Lord Gill in his damning two year study & report on the state of Scotland’s “Victorian” civil justice system, a justice system which is famed worldwide for crippling Scots access to justice.

The Civil Justice Advisory Group (CJAG), which was re-convened in January 2010, is seeking views on practical solutions to ensure that people with legal problems have real and effective access to appropriate, affordable and fair dispute resolution processes, particularly for claims of low financial value, housing cases, family cases and children’s hearing referrals. It will focus principally on the recommendations of the review relating to pre-court measures, including improving access to justice for party litigants, the proposed ‘third -tier’ of judicial office, and the proposed new simplified procedure.

To support the consultation process, the CJAG will also host a free consultation seminar on Monday 13th September at the Roxburghe Hotel in Edinburgh. The event will be interactive, with roundtable discussions and feedback sessions. Professor Dame Hazel Genn, Dean of Laws and Professor of Socio-Legal Studies at University College London will be the keynote speaker. If you have an interest in reforming Scotland’s justice system, be there.

The seminar programme can be accessed by clicking here. Places can be reserved by using the online registration form or sending the booking form to the address listed below.

The consultation and seminar feedback will help the Group in formulating a detailed report to the Scottish Government on how it should take forward some of the recommendations of the Scottish civil courts review report.

The consultation paper can be accessed by clicking here : Civil Justice Consultation Response Paper (pdf)

Responses to the consultation should be submitted to Consumer Focus Scotland before 24th September 2010 by email to : civil.justice@consumerfocus.org.uk or via the online response form

By post to :
Civil Justice Advisory Group Consultation
Consumer Focus Scotland
Royal Exchange House
100 Queen Street
Glasgow
G1 3DN

I would urge as many readers as possible to take part in this consultation, for the benefit of yourself and all Scots who need access to a fairer, much improved Civil Justice system in our own land. Access to justice for one, access to justice for all !

Commenting on the consultation, the Right Honourable Lord Coulsfield, Chair of the Civil Justice Advisory Group, said: “I was very pleased to be invited to Chair the re-convened Group earlier this year. It is important that the recommendations of the civil courts review be fully debated and understood before they are put into effect.”

He continued : “I would strongly urge anyone who has any relevant experience, good or bad, of the operation of the court system or other means of resolving disputes, or any comment, criticism or suggestion to contribute to this important debate by responding to this consultation paper. The greater the level of participation, the better placed the Group will be to make a strong and useful contribution to the debate over the Gill proposals and the decisions as to how they are to be carried out.”

Sarah O’Neill, Head of Policy and Solicitor at Consumer Focus Scotland, which provides policy and secretariat support for the CJAG, added: “The Scottish civil courts review set out a bold range of challenging but pragmatic recommendations, presenting a vision of a civil justice system fit for the 21st century. We are keen to encourage debate on the proposals and how they can best be implemented for the benefit of those individuals who find themselves having to use the civil justice system, whether they are pursuing a claim against someone else, or defending a case brought against them.

Ms Neill continued : “The outcome of the Civil Justice Advisory Group’s work will be influential in taking this agenda forward. The consultation, and accompanying seminar, provide opportunities for everyone with an interest in achieving a more user-focused and accessible civil justice system to contribute their views and help shape the Group’s report to the Scottish Government. We hope that all of those with an interest in these issues will take the opportunity to get involved in this debate.”

Readers can view my earlier report on Lord Gill’s Civil Courts Review here : Scots Law ‘shake up’ as Lord Gill’s Civil Courts Review supports McKenzie Friends, Class Actions & wider access to justice for all

Readers can download the Civil Courts Review report in pdf format, from the Scottish Courts Website at the following links :

Civil Courts Review

The Report of the Scottish Civil Courts Review was launched today Wednesday, 30 September 2009 and is available to download below:

Background to the Civil Justice Advisory Group :

In 2004, the Scottish Consumer Council, one of Consumer Focus Scotland’s predecessor bodies, established the Civil Justice Advisory Group, supported by the then Scottish Executive and funded by the Nuffield Foundation. The Group, chaired by the Right Honourable Lord Coulsfield, held six seminars between September 2004 and April 2005, structured to mirror a user’s journey through the civil justice system, from seeking advice on their dispute, through the dispute resolution process, to the enforcement stage. The Group published its final report, The Civil Justice System in Scotland – a case for review? (available as a PDF by clicking here) in November 2005. The Group recommended that there should be a review of several important aspects of the civil justice system in Scotland, the majority of which were then taken forward by the civil courts review.

Following the publication of Lord Gill’s civil courts review report, Consumer Focus Scotland has reconvened the Civil Justice Advisory Group, under the continued chairmanship of the Right Honourable Lord Coulsfield. The CJAG’s membership includes representatives from the Law Society of Scotland, Faculty of Advocates, Citizens’ Advice Scotland, Scottish Legal Aid Board, Scottish Association of Law Centres, Scottish Mediation Network, Scottish Committee of the Administrative Justice and Tribunals Council and the Scottish Government, as well as Professor Alan Paterson from the University of Strathclyde.

Given its instrumental role leading up to the civil courts review, the Group felt it was very well placed to react to the review’s proposals, and also to make its own recommendations about future courses of action. The Group’s deliberations will focus principally on those aspects of the review of most direct relevance for consumers, namely those recommendations relating to pre-court measures, including improving access to justice for party litigants, the proposed ‘third -tier’ of judicial office, and new simplified procedure.

 

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Sheriff Court Rules Council reveals McKenzie Friends on course to help party litigants in Scottish Sheriff Courts by end of summer 2010

McKenzie Friends for ScotlandMcKenzie Friends for Scotland are coming to Sheriff Courts. SHERIFF COURTS across Scotland will shortly see the formal introduction of McKenzie Friends or “Lay Assistants” to assist unrepresented party litigants in civil law cases after the Sheriff Court Rules Council released a statement confirming its members, mostly appointed by Scotland’s Lord President, Lord Hamilton, have accepted the introduction to Scotland’s Sheriff Courts of the popular non-lawyer courtroom helper which has existed in the English legal system for some four decades.

Among the members of the Sheriff Court Rules Council are officials from the former Scottish Consumer Council, now renamed Consumer Focus Scotland, who backed the introduction of lay assistants.

A spokesman for the Sheriff Court Rules Council confirmed McKenzie Friends are on their way to Scotland’s Sheriff Courts, saying : “I can advise you that the Sheriff Court Rules Council’s Working Group met on 16 June when it considered the proposed use of a McKenzie Friend in civil proceedings in the sheriff court. The Group agreed that provision be made in the rules along the lines of those recently made by the Court of Session. These rules have now been instructed and it is hoped they will be available in time for consideration by the Council at its next meeting on 6 August.”

Lord HamiltonScotland’s Lord President Lord Hamilton recently enacted McKenzie Friends in Court of Session. The move to introduce McKenzie Friends to Scotland’s Sheriff Courts was necessary after the recent decision by the Court of Session Rules Council & Scotland’s Lord President, Lord Hamilton to formally introduce McKenzie Friends to Scotland’s highest court, after a long running petition to the Scottish Parliament on the issue highlighted the lack of lay assistance in Scottish Courts while English courts, and indeed many international jurisdictions allowed the use of lay assistants for the growing numbers of unrepresented party litigants.

Lord WoolmanCourt of Session judge Lord Woolman granted Scotland’s first civil law McKenzie Friend in late 2009. During the course of the Scottish Parliament’s consideration of the McKenzie Friend petition, one of Scotland’s longest running civil claims actions, M.Wilson v North Lanarkshire Council & Others (A1628/01), overtook events at Holyrood and introduced Scotland’s first civil law McKenzie Friend in the Court of Session, granted by Lord Woolman, making the decision to introduce McKenzie Friends to general use in the Court of Session and lower Sheriff Courts, a formality, albeit one taking the best part of a year to complete.

Lord GillLord Gill proposed McKenzie Friends in Civil Courts review. Progress to finally bring lay assistants to Scotland’s civil courts was helped considerably by McKenzie Friends being recommended by Scotland’s Lord Justice Clerk, Lord Gill who had spent considerable time on the issue of lay representation as part of the two year Civil Courts Review. Lord Gill had also recommended a ‘super McKenzie Friend’ with a right of audience, enabling a lay assistant to address the court on behalf of party litigants, a proposal now part of the Legal Services (Scotland) Bill, which I recently reported here : McKenzie Friends from today in Court of Session, Lord Gill’s ‘super’ McKenzie Friend with rights of audience proposal goes to Holyrood

I will report further on the McKenzie Friend issue when the Sheriff Court Rules Council publish more details on their draft rules and timescale for formal introduction.

Background of the Sheriff Court Rules Council :

Membership of the Council

The Sheriff Court Rules Council (the Council) was established in its current form by Section 33 of the Sheriff Courts (Scotland) Act 1971. Members of the Council are appointed by the Lord President. Membership comprises two sheriffs principal, three sheriffs, one advocate, five solicitors, two sheriff clerks and two lay members. Lay members should have a knowledge of the working procedures and practices of the civil courts, a knowledge of consumer affairs and an awareness of the interests of litigants in the sheriff courts. The Lord President consults the Minister for Justice before appointing lay members. The membership is completed by one person appointed by the Minister for Justice, who appears to the Minister for Justice to be qualified for such appointment. This position is currently held by the Head of the Civil Justice Division & International Division, Scottish Government Justice Department Civil and International Group

The current members of the Council are:

Appointed by the Lord President for the period 21 January 2008 to 20 January 2011:

  • Sir Stephen S T Young Bt QC, Sheriff Principal of Grampian, Highlands & Islands (Chairman)
  • James A Taylor QC, Sheriff Principal of Glasgow & Strathkelvin
  • Michael J Fletcher, Sheriff of Tayside, Central and Fife at Perth
  • Craig Scott, Sheriff of Glasgow and Strathkelvin at Glasgow
  • William Holligan, Sheriff of Lothian and Borders at Edinburgh
  • Mr Simon Di Rollo QC, Faculty of Advocates
  • Mr Joseph d’Inverno, Solicitor-Advocate, Edinburgh
  • Mr Fraser Simpson, Solicitor, Glasgow
  • Mr Gregor Murray, Solicitor, Dundee
  • Ms Clair McLachlan, Solicitor, Glasgow
  • Mr Stephen Brand, Solicitor, Dundee
  • Mr Alan Johnston, Sheriff Clerk’s Office, Glasgow
  • Mr Roland McMillan, Sheriff Clerk, Dundee
  • Ms Sarah O’Neill, Scottish Consumer Council
  • Ms Rachel Smith, In Court Advisor, Aberdeen

Appointed by the Minister for Justice:

  • Mr Colin McKay

Minutes of Meetings & Consultation Papers of the Sheriff Court Rules Council are well worth a read for all court users & party litigants.

Functions of the Council

These functions are defined in Section 34 of the Sheriff Court (Scotland) Act 1971. The function of the Council is to review the procedure and practice in civil proceedings in the Sheriff Court. In the light of that review, the Council prepares draft rules and submits them to the Court of Session for approval. The rules submitted to the Court of Session are designed to regulate and prescribe procedure and practice. The review of procedure and practice is an ongoing process. The Council prepares and submits to the Court of Session, draft rules designed to deal with any matters relating to the Sheriff Court.

The Court of Session, having made any modifications it thinks expedient, makes an Act of Sederunt embodying the rules. To assist it in the discharge of its functions, the Council may invite representations on any aspect of the procedure or practice in civil proceedings in the Sheriff Court. The Council considers any representations received. These can be in response to an invitation (e.g. in a consultation paper) or in another manner (e.g. by correspondence or having been raised by a member of the Council).

Power of Court of Session to Regulate Civil Procedure in the Sheriff Court

This power is defined in Section 32 of the Sheriff Courts (Scotland) Act 1971. The Court of Session, by Act of Sederunt, regulates and prescribes the procedure and practice to be followed in any civil proceedings in the Sheriff Court.Before making an Act of Sederunt, the Court of Session consults the Council and takes into consideration their views, unless the Act of Sederunt embodies draft rules submitted to the Court of Session by the Council.

You can read my earlier coverage of the campaign to bring McKenzie Friends to Scotland, here : McKenzie Friends for Scotland : The story so far

 

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